Roots of Prop. 8 ruling can be traced to November 2010

The fate of Prop. 8 was really sealed in November 2010, when Democrat Kamala Harris defeated Republican Steve Cooley in a race that was so close it took three weeks to determine a winner.

Harris had made it abundantly clear during the campaign that she would not waste state resources defending an initiative she regarded as unconstitutional. Cooley tried to make it an issue, contending an an attorney general has an obligation to defend the voters’ will in court.

Harris won, and Prop. 8′s supporters then took up the defense. But in a 5-4 ruling on Wednesday, the U.S. Supreme Court ruled that Prop. 8′s supporters lacked the standing — or legal right — to defend their measure.

For those who cheered the high court ruling, and agree with Harris and San Francisco City Attorney Dennis Herrera that the high court’s definition was correct, you might want to think about how this reasoning might be applied against an initiative in the future. Remember, under the court’s ruling, legal standing to defend an initiative on appeal comes in two categories: 1) State officials. 2) Someone who can show direct and personal harm. Clearly, the proponents of Prop. 8 could not show either. But this would be the case in many scenarios involving initiatives. For example:

– Suppose voters approved a tax on oil companies. The companies challenge it in court. A Republican governor and attorney general decide that the tax is unconstitutional. The supporters of the initiative certainly would be unable to show direct and personal harm. End of story.

– Suppose voters become fed up with corruption in the State Capitol and call for a ban on elected officials taking lobbyist-paid junkets. One or both major political parties file suit. The governor and attorney general, among the worst offenders, declare it unconstitutional infringement on free speech. The initiative sponsors, again, could not show direct or personal harm. End of story.

Remember, something is not unconstitutional just because a governor or attorney general says its so. The final word on the constitutionality of anything rests with the Supreme Court. But in the case of Prop. 8, the court did not actually draw judgment on its constitutionality because, in its view, no one with the standing to defend it had stepped forward. In effect, Governor Jerry Brown and Attorney General Kamala Harris were allowed to veto the initiative.